Putting Abortion Question to Florida Voters Is Unlikely to End Court Fights

Abortion-rights supporters celebrated last week when the Florida Supreme Court said voters could decide this fall whether to approve a state constitutional amendment protecting and expanding abortion rights in Florida. But the court also laid out a road map for anti-abortion groups to challenge any expansion, by raising the prospect of “fetal personhood.”

In concurring and dissenting opinions that accompanied the ruling, four of the seven justices on the conservative court indicated that they may interpret the State Constitution to grant fetuses the same legal rights as people, foretelling the next likely court fight over abortion. The proposed state constitutional amendment would guarantee access to abortion “before viability,” or before about 24 weeks of pregnancy.

“If this does pass — but even if it doesn’t pass — I think that there is an open door to go to the Florida Supreme Court,” said Mathew D. Staver, a lawyer for two anti-abortion groups that oppose the ballot measure, the Liberty Counsel and Florida Voters Against Extremism.

Anti-abortion activists have promoted the fetal personhood legal strategy since the U.S. Supreme Court eliminated the federal right to abortion in 2022. What has been perhaps their biggest success came in February, when the Alabama Supreme Court held that a frozen embryo should be considered a person, opening a new front in the legal debate over abortion.

What was striking in Florida was that the argument was not raised by one of the lawyers opposing the abortion ballot measure, but rather by the court.